The chief justice was seeking to turn down the temperature. But while that was admirable, his taking the bait is more likely to have the opposite effect.
A postscript to my earlier comments on the chief justice’s public statement as I awake from a yearslong slumber on these pages. First, I don’t question the correctness of the chief’s statement. I, too, think that President Trump’s call for impeachment of Judge Boasberg is both stupid and reckless.
It is stupid because all that Judge Boasberg has done is issue a temporary stay of deportation long enough for him to consider the merits. The case presents a complicated legal challenge to the president’s power under 200-plus-year-old statute that has only been invoked historically in wartime. That does not mean that the president’s position is entirely meritless, since the statute is meant to apply in broader circumstances than declared wars and includes a rather amorphous term “predatory incursion.”
There are also difficult questions of whether a judge can even review the president’s determination on such a foreign policy/national security issue. But all of that said, it is, at best, a novel and difficult question and one that should not be decided in an emergency context. All Boasberg did was preserve the status quo for a few days to allow it to be considered. He made no ruling on the merits and did not order the release of the Venezuelan deportees.
It is reckless because the president is turning up the heat on an individual judge that he disagrees with. This is a tactic that the Left has favored in recent years, and the only defense to that point I’ve seen in recent days is, “Well, Biden himself didn’t do it.” But he did, and repeatedly so. Maybe he didn’t call for impeachment, but he plainly went after judges and justices he didn’t like when they ruled on questions such as abortion and presidential immunity.
That sort of behavior is unpresidential, no matter which side is doing the criticizing, something my younger and more combative self was taught by President Bush in my tenure in the White House. I had written a paragraph for a speech by Vice President Cheney to a conservative group that took issue with the Supreme Court’s GTMO jurisprudence (regarding detained enemy combatants at Guantanamo Bay). I was proud of the paragraph — it was measured criticism, but went to the heart of the notion that the courts could decide those issues of national security and foreign affairs. A few days later I got a call from the vice president: “Shannen, I loved the addition, great work.” I thanked him. “But we’re not going to use it,” he added, “The president doesn’t want any criticism of the Court.” One can bicker with the degree to which President Bush avoided confrontation with the Court, but it had the laudable effect of not raising the temperature further during wartime.
President Trump’s instinct is quite the opposite. Find a foil and attack, attack, attack. This (and President Biden’s similar instincts) leads to what we have now — judges and their families being threatened, doxed, visited and picketed at their homes, and in Justice Kavanaugh’s case, actually becoming the subject of an assassination attempt. I understand, from my own experience as a Justice Department lawyer on the front lines of the Bush administration’s many battles with individual judges, that this can be frustrating and time-consuming. We had to take Judge Emmet Sullivan to the Supreme Court on mandamus review to overturn discovery orders against the president and vice president in the National Energy Policy Development Group litigation, and I was the guy who had to stand in front of Judge Sullivan and tell him he was wrong and that we’d be seeking further review. It wasn’t always fun, but we respected the process, even though we were certain the judge was wrong (and were vindicated by a 7–2 vote in the Supreme Court). Trump’s approach is, to the contrary, to create a showdown with the courts. His approach in this case may hurt him in other cases, too.
Second, I have it on very good authority that the chief justice was seeking to turn down the temperature in this environment. But while that objective is admirable, his taking the Trump bait is more likely to have the opposite effect. It gives Trump his foil, it undermines any decision against Trump (and there will be plenty) by the judiciary, and it leads to questions of the chief’s own impartiality. I suspect that the chief is much less concerned with the politics of Trump than he is the risks/threats to judges, and I don’t think, in reality, his impartiality is in play. But there is an appearance concern when he weighs in here publicly but didn’t do so in previous instances of attacks on members of the judiciary (despite the fact that he may have been working the phones behind closed doors).
Judge Boasberg is a respected judge and a decent person, a left-of-center judge who I think gets things wrong about the Constitution and the law at times, but a likable, good man who is just trying to do his job. He was faced with an emergency circumstance and took steps to preserve his jurisdiction to decide the issues. I have some concerns about how he did that — for instance, he provisionally certified a class so that he could give universal relief, when he could have simply limited his order to the five named plaintiffs. But if he’s wrong, there is an appellate process for that error. No harm would come from having to keep the plaintiffs in U.S. custody for a week or two until it played out. And the administration’s response to his order, whether it has some merit or none, only complicates its desire to get a good resolution of this dispute.
Trump’s call for impeachment is reckless and dangerous, and the chief’s response to that call is not likely to have the calming effect that the chief may have intended. It is possible that both can be wrong, and in this instance, I think that is the case. The president is wrong to call for judicial impeachment simply because a judge did something he doesn’t like, and the chief is wrong to criticize the president for calling for impeachment.